| According to the majority point of view in our domestic academia, the composing mode of torts in Chinese Tort Liability Law is the French mode characterized, because the applicative scope of our tort law is barely limited, at the same time, the law does not offer the differentiated protection to the civil rights and interests. But it is worthy asking whether the theory is correct or not. The essential difference between the French mode and the German one is whether to regard the civil rights and interests as one of the elements to establish the tort liability. It is also the key criterion to understand which mode our law shall belong to. In order to fit the overall layout of the future Civil Code, basing on the position of civil rights and interests protection, our Tort Liability Law makes it clear that the civil rights and interests are within the judging elements to establish the tort liability. Therefore, the composing mode of torts in our Tort Liability Law belongs to the German one.However, the German mode may not be necessarily a good choice on the applicative level, because our Tort Liability Law (especially Article 2) is unique on the provisions and features compared with the German tort law, and that it lacks the similar support of legal norms as paragraph 2, Article 823 and Article 826 in German Civil Code. Thus a possible interpretative approach is to apply the "flexible system" proposed by the "Principles of European Tort Law" to solve the problem of the differentiated protection of civil rights and interests, that is, to differentiate the protection degree of absolute title, absolute legal interests and other property legal interests, and thus define reasonably the "edge" and "extent" of the tort law. |
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